How to Manage & Minimize Absenteeism Anne H. Williams Attorney

How to Manage &
Minimize Absenteeism
Anne H. Williams
Attorney
M. LEE SMITH PUBLISHERS LLC
B r e n t w o o d , Te n n e s s e e
This special report provides practical information concerning the
subject matters covered. It is sold with the understanding that neither
the publisher nor the writer is rendering legal advice or other
professional service. Some of the information provided in this special
report contains a broad overview of federal law. The law changes
regularly, and the law may vary from state to state and from one
locality to another.You should consult a competent attorney in your
state if you are in need of specific legal advice concerning any of the
subjects addressed in this special report.
© 2004 M. Lee Smith Publishers LLC
5201 Virginia Way
P.O. Box 5094
Brentwood,Tennessee 37024-5094
ISBN 0-925773-81-6
All rights reserved. No part of this book may be reproduced
or transmitted in any form or by any means without
permission in writing from the publisher.
Printed in the United States of America
Contents
INTRODUCTION....... 1
1 —HOW TO COMPLY WITH EMPLOYEE LEAVE LAWS....... 3
The Laws of the Land....... 3
You’ve Got to Coordinate....... 4
Take Discrimination Laws into Account....... 5
Review Your Procedures....... 6
2 — COMMON TYPES OF EMPLOYEE LEAVE....... 9
Voluntary Leave....... 9
Mandatory Leave....... 11
3 — REASONS FOR EMPLOYEE ABSENCES....... 13
Illness-Related Absences....... 13
Interplay with Your Paid Leave Policies....... 17
Managing Illness-Related Absences....... 18
Military Leaves of Absence....... 21
Religious Observances....... 22
4 — NOTICE OF ABSENCES....... 25
Call-In Policies....... 25
Job Abandonment....... 27
iii
B r i n g i n g A r b i t r a t i o n i n t o Wo r k p l a c e 2 0 0 0
5 — PAY AND BENEFITS DURING LEAVE....... 29
Health Benefits During FMLA Leave....... 29
Health Benefits During Disability Leave....... 32
COBRA Continuation Coverage....... 32
6 — RETURN FROM LEAVE....... 35
Job Reinstatement....... 35
Key Employee Exception....... 37
Return-to-Work Certification....... 38
Granting More Leave....... 38
7 — ABUSE OF YOUR ABSENCE POLICY....... 39
Importance of a Good Policy....... 39
Avoiding Abuse....... 40
Moonlighting on FMLA Leave....... 41
Out and About....... 43
8 — DISCIPLINE AND DOCUMENTATION....... 45
A Well-Written Policy....... 45
No-Fault Attendance Policies and FMLA....... 46
Documenting Absences....... 47
Reward Good Behavior....... 48
CONCLUSION....... 51
Notes....... 51
iv
Introduction
S
L
et’s face it, getting employees to show up for work is an ongoing
battle. Employee absenteeism is a problem for almost all employers.
And it is a costly problem. According to a recent survey of government statistics, sick days cost companies nearly $800 per employee
per year. With this much at stake, your company has probably
already taken steps to address the problem. This report is intended
to help you recognize the factors that lead to excessive absenteeism and
learn how to minimize the effects on your workplace.
Sorting through employee absences can be worse than doing 8th grade
algebra. Let’s say that Ted, one of your busiest managers, comes into your office
with his hands in the air. Of the 20 employees who report to him, only 10 are
at work today. Arnie stayed out too late last night and called in saying he was
too drunk to come to work. Bucky’s daughter is too sick to go to school so he
is staying home with her. Carly had previously scheduled a sick day to go to
the dentist for a root canal. Dion said he heard there is a slight chance of freezing
rain, so he’s not coming in. Earl got into a car accident on the way to work and
can’t come in. Frank’s wife called, he’s in jail and won’t be in until tomorrow.
Gino is out with the flu for the third day in a row. Hadassah is taking a
personal day for a religious observance. Ina hasn’t called in or showed up yet,
and Jamal came in sick and was sent home. Not only is Ted’s department having
a hard time functioning today, but Ted is at a loss over who should be given
FMLA time, who deserves discipline for not showing up, and whose absence
should be approved.
Absenteeism is one of the most serious problems facing employers in
today’s workplace. Legitimate illnesses still account for the majority of absences,
but more employees are using sick days for nonhealth-related reasons.A recent
study by a human resources firm estimated that fewer than one-third of
absences from the workplace are related to poor health. Nonhealth-related
absences were attributed to a variety of reasons, including family problems,
stress, running errands, and so-called “mental health days.”
Most employers recognize that in order to keep their employees happy,
and therefore productive, they cannot expect them to work tirelessly without
a break.That is why the vast majority of employers give their employees time
off to take care of personal business, stay home from work when they are sick,
or enjoy periods of rest and relaxation. However, no matter how much
Sick days cost
companies
nearly $800
per employee
per year.
1
How to Manage & Minimize Absenteeism
approved time off is available under your policy, there will always be employees
who will need more.
This report will take a close look at the common causes of absenteeism:
illness, family illness, military leave, and death in the family, to name a few.We
will also give you some insightful tips and techniques for managing this costly
problem area.
2
1
How to Comply with
Employee Leave Laws
W
ouldn’t it be great if there were one, ironclad, carved-in-stone
law that applied to employee leave? It would be written in clear
black and white without any legalese. It would be contained in
a big black book, aptly titled The Big Giant Book of Everything
About Absences. You could just flip to the appropriate section
and it would tell you whether your employee qualifies for
leave. Imagine for a moment that Jay walks in your office and says,“A garage
door in the warehouse just fell on my head.” You open The Big Giant Book of
Everything About Absences to the page clearly marked “Assault by Garage Door.”
Under that section it says when an employer’s garage door falls on an employee,
send him to the doctor, approve his absence, and instruct him to file a workers’
compensation claim. No sooner does Jay leave your office than Cindy comes in
and says she is late because her dog was sleeping under the car and she ran over
him. Again, you open The Big Giant Book of Everything About Absences to the
section marked “Dog Sleeping Under the Car” and it says, bogus excuse, dog is
likely alive, do not approve absence. Easy, isn’t it?
Unfortunately, we live in the real world, where several leave laws
intersect and overlap. This section of the report will help you coordinate
compliance with the various laws that govern employee absences.
THE LAWS OF THE LAND
Before you can have a full understanding of how to manage absenteeism in
your workplace, you must understand the federal, state, and local laws that you
must obey. In fact, there are several federal laws and countless state laws that deal
with certain types of employee leave.The rights and obligations of the various
laws can vary and overlap significantly, leaving you wondering which one to
apply.The rules are often inconsistent and confusing.
The three main federal laws that you need to be concerned with regarding
employee absences are:the Family and Medical Leave Act1 (FMLA),the Americans
with Disabilities Act2 (ADA), and Title VII of the Civil Rights Act of 19643 (Title
VII).The FMLA requires that you grant qualified employees leave under certain
circumstances, such as their own serious health condition or that of a loved one or
the birth or adoption of a child.The ADA requires that you do not discriminate
against any qualified individual with a disability if that person can perform the
3
How to Manage & Minimize Absenteeism
main functions of the job with a reasonable accommodation. Title VII also
proscribes discrimination against individuals based on their membership in certain
“protected” classes.
Your state most likely has a workers’ compensation statute that covers onthe-job illnesses and injuries. Most state workers’ compensation laws protect
workers who must take time off from work due to their injuries. In addition to
this state law, your state may have its own laws regarding family and medical leave.
YOU’VE GOT TO COORDINATE
4
The U.S. Department of Labor (DOL) has issued regulations regarding
how to implement and interpret the FMLA.4 These regulations cover the interplay of the FMLA and state and local laws to a degree, but seem to leave as
many questions unresolved as answered. For example, they don’t provide
much guidance on how to coordinate leave policies and the overlap of
different legal requirements.
Some ways that federal, state, and local laws may differ are listed
below:
Reasons for Leave. The FMLA regulations make clear that an
employee eligible for leave under only one law (FMLA or state) is entitled
to benefits in accordance with that particular statute. Different rules may
apply if a state or local statute permits leave for reasons permitted but not
covered by the FMLA. For example, if a state law provides leave to care for a
seriously ill grandparent or same-sex partner, neither of which are covered
by the FMLA, an employee who takes leave for this purpose remains entitled
to all leave permitted by the FMLA. However, if leave covered by the FMLA
is used first for a purpose for which state law also provides, and state leave
has been exhausted, the employer isn’t required by the FMLA to provide
additional leave to care for the grandparent or same-sex partner.
Duration of Leave. The FMLA entitles employees to as many as 12
weeks of leave during any 12-month period. Leave may be taken intermittently or on a reduced-leave schedule depending on the circumstances. Leave
to care for a newborn or newly adopted child may be taken intermittently if
the employer and employee agree to the arrangement. Employees may take
medical leave intermittently or on a reduced-leave schedule when medically
necessary without permission from the employer. If an employee qualifies
for leave under the FMLA, as well as leave under state law, the leave used
counts against the employee’s entitlement under both laws. For example:
• If a state statute provides 16 weeks of leave entitlement during a
two-year period, an employee would be entitled to take 16 weeks
one year under state law and 12 weeks the next year under the
FMLA. However, health benefits maintenance under the FMLA is
applicable only to the first 12 weeks of entitlement each year. If the
employee took 12 weeks the first year, the employee would be entitled to a maximum of 12 weeks the second year, but not 16 weeks.
How to Comply with Employee Leave Laws
• If a state law provides six weeks of half-pay for maternity leave, the
employee on leave would be entitled to an additional six weeks of
unpaid FMLA leave for a total of 12 weeks.
Notice of Leave. The FMLA and state statutes require employees to
give their employers varying periods of notice. Under the FMLA regulations,
a “shorter notice period under State law must be allowed by the employer
unless an employer has already provided, or the employee is requesting, more
leave than required under State law.”
Medical Certification. Under the FMLA, an employer may require
that an employee provide certification of his or her serious health condition,
or that of a family member, in a “timely manner.”
Medical certification may include:
• The date on which the serious health condition began and its
probable duration;
• Appropriate medical facts;
• A statement that the employee is needed to care for the spouse,
parent, or child or that the employee is unable to perform his or
her job functions; and
• The dates and duration of treatment to be given in the case of
intermittent leave.
The FMLA’s regulations state that, “[i]f state law provides for only
one medical certification, no additional certification may be required by the
employer unless the employer has already provided, or the employee is
requesting, more leave than required under State law.”
Benefit and Salary Continuation. The FMLA entitles employees on
leave to receive the same health-benefit coverage as when working. In addition,
leave may not result in the loss of any previously accrued seniority or
employment benefits. Employers aren’t required to continue the accrual of benefits during the leave. FMLA rights may not be reduced by an employmentbenefit program, plan, or collective-bargaining agreement (CBA). For example,
the FMLA supersedes provisions of a CBA that provide for reinstatement to a
position that isn’t equivalent. Family leave is unpaid under the FMLA, however,
the employee may elect, or an employer may require, the employee to substitute
any of the employee’s paid vacation leave, personal leave, or paid family leave for
any part of the 12-week period of leave.
Job-Restoration Rights. Under the FMLA, an employee who completes a leave must be returned either to the same position as before, or to a
position equivalent in pay, benefits, and other terms and conditions of
employment. The act provides a limited exemption from the restoration
requirement for certain highly paid employees.
TAKE DISCRIMINATION LAWS INTO ACCOUNT
Employer obligations neither begin nor end with family leave legislation
compliance. Adding to the complexity are additional federal, state, and local
laws regarding discrimination — among them the ADA and the Pregnancy
Discrimination Act (PDA).
5
How to Manage & Minimize Absenteeism
The PDA requires that employers provide leave to employees who are
temporarily and medically disabled because of pregnancy, childbirth, or
related conditions, in a like manner to that provided to employees who are
disabled for other nonwork-related conditions or injuries.
The ADA prohibits both public-sector and private-sector employers from
discriminating against persons with disabilities. It also requires that employers
reasonably accommodate employees and applicants with disabilities, so long as such
accommodation doesn’t result in undue hardship to the employer.Accommodation
includes job restructuring and permitting part-time or modified work schedules.
The requirements of the ADA are discussed in depth in section 3 of this report.
REVIEW YOUR PROCEDURES
Your front line
of defense
against a
lawsuit
regarding
violation
of leave
laws is your
supervisors
and managers.
6
In order to make sure that you are in compliance with all applicable
leave laws, your procedures should include the following:
• An understanding of applicable federal and state leave laws.
All those involved in applying your leave policies — your HR
department, benefits department, and managers and supervisors —
should receive adequate training on how these laws work and how
they interplay with your company’s leave policies.
• Implement attendance policies and procedures. Draft a comprehensive absenteeism policy that clearly states your company’s
rules and procedures regarding absences and discipline.
• Inform employees of your policies. Be sure that your absenteeism policy is distributed to all employees. It’s a good idea to give
employees copies of your policy at the time they are hired and then
continue to remind employees of the policy.You should include
your policy in your employee handbook and also post it prominently in your workplace.
• Assign responsibility for policy enforcement. Figure out what
department — or specific job position — will have the responsibility for administering the leave program at your company, including
how specific issues will be resolved. Don’t forget to establish a timekeeping system that takes into account which absences, such as
those covered by the FMLA, will be protected from discipline.
• Train all managers and supervisors. Your front line of defense
against a lawsuit regarding violation of leave laws is your supervisors and
managers. Give them enough training to implement your basic absenteeism policies and also train them to spot issues, such as FMLA situations, that may need to be referred to HR. Don’t forget to give training
to your timekeepers, as well. Continue to follow up with training so
that these employees are aware of changes in your policy or the law.
• Beware of the “treacherous triangle.” It is important to understand the interplay between the three major laws affecting attendance: FMLA, ADA, and your state workers’ compensation statute.
For more information about the treacherous triangle, please see
How to Comply with Employee Leave Laws
•
•
•
•
•
the HR Executive Special Report FMLA,ADA & Workers’ Comp:
Navigating the Treacherous Triangle.
Cover your benefit bases. Get your benefits department involved
to develop a policy to ensure that benefits, such as health insurance
premiums, are properly dealt with while employees are on leaves of
absence. Remember, you must maintain an employee’s benefits while
they are on FMLA leave.You may need to set up a different system
for other types of employee leave, depending on your policies.
Post proper notices. Many federal laws require you to post
notices in employee areas alerting employees of their rights under
the law. Make sure that you comply with these notice requirements.
Use standardized forms. Whenever possible, streamline your
processes by using standardized forms to document absences and
related matters, such as medical certifications or discipline.
Stay abreast of the law. It is important that you stay abreast of
changes to federal and state law that may impact your absenteeism
policies. For example, the FMLA regulations that were first issued
in 1993 are slated to be revised in the near future. Once this happens, you may need to revise your policies to comply.
Reinforce your disciplinary policy. It is a good idea to give
employees a copy of your absence policy when they are disciplined
for a violation of the policy.This reinforces their awareness of the
policy.
7
About the Author
A
nne H. Williams is an attorney editor in the Editorial Department of
M. Lee Smith Publishers LLC. She has written and edited
employee benefit and employment law newsletters, HR Frontline,
and HR Executive Special Reports. She is the author of the HR
Executive Special Reports: The H in OSHA Stands for Health,
Workplace Harassment Trail Guide, FMLA Leave:A Walk Through the
Legal Labyrinth,Ten Commandments for Avoiding Religious Harassment and Discrimination Claims, How to Avoid the HR Hazards of Your Electronic Workplace,
ADA from A to Z, How to Manage Your Aging Workforce, How to Discipline & Document Employee Behavior, How to Make Background Checks Part of Your Hiring
Process, and Know Your Responsibilities: Ethics & Fiduciary Duties for HR. Prior to
joining the company, Ms.Williams practiced law in Chicago, Illinois, for five
years.
Before coming to Tennessee, Ms.Williams served as an Assistant Attorney General in Illinois where she practiced employment discrimination
defense law in the Government Representation Bureau. Prior to that she
practiced law at Dowd, Bloch and Bennett in Chicago where her primary
area of practice was labor union representation and employment law.
Ms.Williams graduated from DePaul University College of Law in
Chicago, Illinois, after obtaining her undergraduate degree in English
Literature from DePauw University in Greencastle, Indiana.
53
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